Very early on Justice Kennedy asked the Soliciter General, who was arguing in support of the constitutionality of the health insurance mandate, the following question: "Can you create commerce in order to regulate it?" The answer was: "That's not what's going on here, Justice Kennedy, and we're not seeking to defend the law on that basis."
I wish Justice Kennedy had asked his question in the following way: "Can Congress compel commerce in order to regulate it?" I think this is a better, more precise, way to put the key constitutional question with respect to the health insurance mandate. The action of Congress is actually not to "create," it is to compel many individuals to do something they would not choose to do on their own volition. It seems to me that the constitutional power of Congress is the power to regulate voluntary exchanges between a buyer and a seller located in different states. It seems obvious that the power to regulate exchanges (commerce) cannot include the power to compel exchanges.
Of course, Justice Kennedy's question seems very close to my question, but I think that there are many potentially different implications that follow from using "create" rather than "compel." I suggest that using "create" makes the action of Congress seem much more benign than it truly is. A definition of "create" at dictionay.com suggests the Justice was asking: "Can you cause commerce to come into being in order to regulate it?" Certainly, put in this way, the action by Congress under Court review seems almost a good thing. After all, "creation" is generally a good thing, and in the realm of economic affairs it seems to be generally accepted that more economic activity is better than less.
So, I fear, that asking the question in the way Justice Kennedy did, makes it conceptually pretty easy to decide the answer is yes. After all, if the action of Congress is to create commerce that is "good for everyone" then it could seem to make sense for Congress to create commerce in order to regulate it.
However, we should conclude that Congress cannot create commerce. Congress might participate in commerce, but it cannot create commerce. Searching online dictionaries provide a couple of useful definitions of "commerce" in this regard:
an interchange of goods or commodities
the buying and selling of goods.These definitions suggest that my definition of interstate commerce, i.e., a buyer and a seller located in different states, is on target. It also suggests that we should not think that commerce is created. Commerce emerges through the voluntary actions of different individuals. Commerce is not created by the actions of either a buyer or a seller alone. Commerce emerges from the actions of a buyer and seller in an interaction between the voluntary actions of each.
Consider that Congress can engage in commerce by being either a buyer or a seller, but of course it cannot be both buyer and seller. What would we say if Congress attempted to "create" commerce by either (a) telling a person she must buy something from the US Government, or (b) telling a person she must sell something to the US Government? On the surface either (a) or (b) might appear to be commerce because we could observe a "buyer" and a "seller," but neither would be commerce. Both (a) and (b) involve an action by Congress to compel either a buyer or a seller to act as the government commands. Congress cannot "create" commerce, or create an exchange between a buyer and a seller without using force to compel one or the other individual, or perhaps even both, to act in a way that would not otherwise be chosen for themselves.
I suggest the appropriate question to evaluate the constitutionality of the health insurance mandate in the ACA is: Does Congress have the power to compel a person to purchase something she would not otherwise purchase? The answer, of course, is NO.
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